Kopel weblog 2008 Archive: January-March

On March 18, I joined the lawyers
for Dick Heller at the counsel table for oral argument in District of Columbia v. Heller. The counsel
table has four seats, and there were three lawyers representing Mr. Heller, so Alan Gura, the lead lawyer
in the case, invited me to sit with them at the counsel table.

The practical function of the lawyers who are not
presenting the oral argument is to write notes for the arguing lawyer, in case a tangential issue comes up.
During the presentations by Walter Dellinger (for D.C.) and Paul Clement (for the Solicitor General) Justice
Stevens asked questions which pointed out that of the Founding Era state constitutions, only two (Pennsylvania
and Vermont) specifically mentioned self-defense as one of the purposes for the right to arms. So I gave Gura a
note pointing out that courts in Massachusetts and North
Carolina had interpreted their state constitution "for the common defence" language as an encompassing a right
to arms for legitimate purposes, including defense against criminals. During Gura's presentation, Justice
Stevens raised the point again, and Gura began to detail
the case law, but Justice Stevens waved him off, stating that he was interested only in the constitutional texts.

After oral argument in any case, it's always possible to
think about how a particular answer could have been given better; but I think that Alan Gura did an
excellent job. He was solid, well-informed, and persuasive.

Some observations from a first-timer in the Supreme
Court:

The counsel table is quite near the bench. It's an
interesting experience to see the Justices up close and
personal, after having spent so many months trying to
discern their modes of thought.

It is indeed awe-inspiring to hear the Marshal of the
Court announce: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the
United States, are admonished to draw near and give their attention, for the Court is now sitting. God save
the United States and this Honorable Court!"

Before the argument, Walter Dellinger, a true Southern
gentleman, came over to shake our hands. He graciously
told Gura that Gura would do "great," and said that his
own very first oral argument had been his best.

Also awe-inspiring are the Court's chambers, with a
beautiful high ceiling, and friezes on all four walls depicting great law-givers, as well as mythical
characters personifying law-related virtues such as
wisdom.

Based on the oral argument, it is possible to identify a
few of the amicus briefs that were particularly influential. As Respondent, Gura would have been
foolhardy to argue that the Court's leading precedent,
United States v. Millerneeded to be altered in
any respect. That argument was instead in Nelson Lund's
excellent brief for the Second Amendment Foundation,
and was apparently adopted by Justice Kennedy.

Justice Kennedy's view that the militia clause of the
Second Amendment emphasizes the importance of the militia, but does not limit the rights clause was
supported not only by
Gura's brief, but also by a careful textual analysis
in the Lund brief, and by a strong historical presentation in the
Academics for the Second Amendment brief, written by
David Hardy and Joseph Olson.

Gura was asked at one point if there was any
contemporaneous evidence indicating that self-defense
was a purpose of the Second Amendment. He began by pointing to the 1787
Dissent from the Pennsylvania ratifying convention, which had urged that the proposed U.S. Constitution be
amended to state: "That the people have a right to bear
arms for the defence of themselves and their own state, or the United States, or for the purpose of killing
game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or
real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to
liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and
be governed by the civil powers."

Justice Souter retorted that the Pennsylvania Dissent
was only concerned about the militia. Given the text of what the Pennsylvanians said, I find this view
implausible; the better argument on D.C.'s side (made by, among others, Dennis Henigan of the Brady Center)
seemed to be that if James Madison wanted to protect more than militia-only uses of firearms, he could have
copied Pennsylvania's language, but he chose not to.

Nevertheless, Justice Souter seemed to have been
persuaded by arguments in a
historians' brief by Carl Bogus, which cited the law review scholarship about Pennsylvania by Nathan
Kozuskanich. Kozuskanich was also cited in D.C.'s briefs, and in several of D.C.'s amicus briefs.

Michael Bane's
Down
Range TV has a collection of various lawyers, academics, and other Second Amendment advocates,
discussing the oral argument. He also has a link to the oral argument audio. C-Span's Real Video coverage of the
press conference after the brief (about 21 minutes, equally divided between the two sides) is
here. A 15 minute iVoices.org podcast in which I'm
interviewed about the oral argument is
here.

For over a quarter-century, pro-Second Amendment lawyers
such as Stephen Halbrook, Bob Dowlut, Don Kates, and
David Hardy had dedicated their careers to making March 18, 2008, possible. Moreover, without the work of
millions of pro-Second Amendment activists over the years, there would have been no chance of victory,
however persuasive the evidence of original meaning might be. If the gun prohibition lobby had succeeded in
its plans to use the 1976 D.C. ban to pass handgun bans in many cities and several states, it is doubtful that
the Supreme Court would have the institutional will to strike down so many laws. And it also seems unlikely
that most of the Justices who might have been appointed by a President Kerry, Dukakis, Mondale, or Carter would
have been willing to declare even the D.C. ban unconstitutional.

Yet while the work of millions of citizens made March 18
possible, it was Alan Gura who had to finish the job alone. Our young Skywalker performed magnificently, and
I hope that by the Fourth of July, the law-abiding citizens of our nation's capital will once again enjoy
their rights to own handguns, and to use firearms in defense of their homes and families. 67
Comments

1. Election
Results. The Nationalist
Party (Kuomintang, KMT)
presidential candidate Ma
Ying-Jeou won a landslide
victory today, defeating the
Democratic Progressive
Party candidate Frank Hsieh by
17% (58.5% to 41.5%). Ma won
about 7.6 million votes,
compared to 5.4
million for Hsieh. The
results exceed even the
election-eve expectations of
the KMT, which
was hoping that its internal
polls showing a victory margin
of about 11-13%
would hold up.

Compared to the
2004 election (in which the
DPP's margin of victory was only
0.22%), the KMT improved its
performance in every Taiwan
county by 7-10%, and won 20 of
the 25 counties. (The only county
where the KMT did not improve
dramatically was Kinmen County,
which consists of some small
islands very near to China; a
large percentage of the
population of Kinmen County is
military and their families,
and the military has historically
favored the KMT. The KMT got
about 95% in Kinmen in both
2008 and 2008.) The only
counties with the DPP won were
a cluster in southwest
Taiwan, the party's
heartland.

The KMT and DPP
positions on domestic policy
were not greatly different, but
the DPP nevertheless
suffered from voter unrest
about lower economic growth
rates in recent years, in
comparison to the rapid
economic growth of not long ago.
The parties have significant
differences on international
relations, particularly on
how to deal with China, but both
Ma and Hsieh are moderates within
their parties. For further
analysis of the policy
implications of the election
results, tune in next to a
webcast of a TV program in which
I interviewed a pair of
Taiwanese political
scientists. (Details later.)

The DPP also
performed very poorly in the
January elections for
the legislature (Legislative
Yuan), in part because a group
of 11 DPP incumbents were
defeated in primaries by
hard-liners who could not carry
swing districts. Nevertheless,
because Hsieh is a moderate,
there is a significant
possibility that DPP's remaining
moderates may be driven from
leadership roles.

President-elect
Ma will take office on May
20.

A pair of initiatives were
also on the ballot,
regarding Taiwan's
membership in the UN. A DPP
referendum asked if Taiwan should
apply to join the UN under the
name of "Taiwan." A KMT
counter-initiative asked if Taiwan
should apply to "rejoin" the UN
under the name
of "Republic of
China" or "any
other convenient
name." Both initiatives
received an overwhelming
majority of votes cast, but
neither passed, because the law
states that no initiative will
be valid unless 50% of eligible voters (not
actual voters) vote on the
initiative.

2. Election
Process. The voting and
vote-counting were a model of
integrity, transparency,
and efficiency. I observed
voting at three north-central
Taipei precincts: at
St. John Bosco Catholic Church,
and at a pair of precincts voting
at National Taipei
University.

Throughout
Taiwan, voting
was by paper ballot, with
marked ballots placed into
sealed ballot boxes.
Photography during the
voting process is forbidden,
but is allowed while the ballot
are being counted.

When
the ballot box is opened, and
vote-counting begins, each
ballot is held up one-by-one,
and the vote is announced. The
vote-counting is open to the
public, and is observed by
party representatives,
as well as other interested
citizens.

Each
vote is recorded on a tally sheet
which is also visible. Each
small box on the tally sheet
holds a total of five votes,
which are recorded one at
time with hashmarks. The
completed five-strokes of
the hashmark form a Mandarin
character which means "correct"
or "upright."

After
the last ballot is tallied, the
empty ballot box is displayed for
all to see.

The
results are transmitted to a
district election office,
and then the district results
are sent to the Central Election
Commission, where results
are displayed as fast as they are
recorded.

The
Central Election Commission's
work (which was conducted in an
auditorium at the National
Police Academy) is open for
everyone to watch, with the
data processors located at the
front of the room.

Between the time
when we left our precinct after
the votes were counted, and
when we arrived at the Central
Election Commission,
about half an hour had
elapsed. By then, the CEC
was already displaying over
half of the votes cast
nationwide.

In a typical
American general election, which
may have dozens of races and
issue votes, it would be very
difficult to achieve such
speedy results with
hand-counting. Even so, the
transparency of the Taiwan
process inspires confidence and
helps assure legitimacy.

As in any
election, there are plenty of
people who are disappointed
with the result, and no one
should minimize the difficulty
of the challenge that President
Ma will face in ensuring that
when he leaves office in 2012
or 2016, Taiwan's freedom
and sovereignty
have not been eroded by its
aggressive neighbor. But
for now, all the people of Taiwan
should be proud of their
beautiful island of freedom, and
their successful exercise of the
inherent right of the sovereign
people to chose their government.
0 Comments

In about seven hours, the polls
will open for Taiwan's presidential election. Incumbent
President Chen Shui-Bian is term-limited, so the race is
between Frank Hsieh, of the Democratic Progressive Party
(the same party as Chen), and Ma Ying-Jeou, of the
Kuomintang (Nationalist Party). The public release of
polling information is forbidden in the days before the
election, but many observers believe that Hsieh is
rapidly closing a large gap in the polls.

An important factor working in Hsieh's favor is the
rioting in Tibet, a reminder of China's brutal
suppression of a formerly independent nation; although
the Chinese government has renamed Tibet as the "Tibet
Autonomous Region," Chinese treatment of the Tibetans
ever since the Chinese conquest half a century ago
serves as a reminder that the Chinese government's
promises of autonomy are sometimes worthless.

Mr. Ma, the former mayor of Taiwan's capital city,
Taipei, has proposed forming a common market with China,
and his party, the KMT, is generally seen as more
conciliatory to China than is the DPP. (However, DPP
candidate Hsieh is seen as much less inclined than
President Chen to push the envelope on China issues.)

As a result, Ma has made a point of taking a tough line
on the Tibet issue. He contrasted Taiwan and Tibet by
stating that unlike Tibet, Taiwan is "sovereign"--an
indisputably accurate fact, although one with many
appeasement-minded KMT members have been reluctant to
say out loud. Further, he said that if Chinese
government violence in Tibet continues, Taiwan might
boycott the Beijing Olympics.

Over 200,000 Taiwan citizens living overseas have come
home to vote in the election. The majority of these
traveling voters are Taiwanese entrepreneurs and their
families who live in China. One elderly man traveled 20
hours from Brazil to be able to vote.

The Taiwanese are very enthusiastic participants in
their democracy, and, happily, the electorate seems less
polarized than in the bitterly-contested 2004 election.

By Taiwanese law, all public rallies must end by 10 p.m.
on the night before the election. A little bit ago, I
attended the KMT's final pre-election rally in Taipei.
Neither presidential candidate Ma Ying-Jeou nor his
running mate Vincent Siew were at the rally, since both
spent the day in campaigning in southern Taiwan. Below
are some pictures from the rally. I didn't arrive in
Taipei in time to attend the DPP's big rally there two
nights ago; I wish I had, so that I could also post DPP
photos.

VC readers will be pleased to know that both Hsieh and
Ma have law degrees, and that Ma earned a LLM from
Harvard.

These photos are taken from near the front of the rally;
they don't convey the size of the crowd, which was huge,
or the sounds of the loud and enthusiastic crowd.

The woman in the middle of the above picture (to the
left of the man in the lavender shirt) had flown in from
Los Angeles to vote.

The KMT is the leading party of the pan-blue coalition;
while the DPP leads the pan-green coalition. Hence the
DPP's campaign symbol of a bluebird. The flags, of
course, are those of Republic of China, which is
Taiwan's formal name.

Polls on
handgun bans

The Sunday Washington Posthas an
interesting collection of articles previewing Tuesday's oral argument
in District of Columbia v. Heller, regarding whether DC's handgun ban
and ban on home self-defense with any gun violate the Second
Amendment. Among the articles is a
poll on American attitudes towards gun ownership and the Second
Amendment.

In the WaPo poll, 72% of respondents
said that they considered the Second Amendment to be an individual right,
not just for militia only. The is essentially identical to the most
recent Gallup Poll (conducted Feb. 8-10, 2008) in which 73% of
respondents said that the Second Amendment was an individual right,
not limited only to militia.

The WaPo poll also asked "Would you
support or oppose a law in your state that bans private handgun
ownership and requires that rifles and shotguns kept in private homes
be unloaded or have a trigger lock?"
59% said yes.

This is a surprising result, since
it is strongly contrary other polling results. In the Gallup Poll,
for example, you have to go back to 1965 to get plurality support for a
handgun ban, and back to 1959 to find support comparable to the level
report by WaPo.

Here's the Gallup question, and the
results. "Do you think there should or should not be a law that would
ban the possession of handguns, except by the police and other
authorized persons?"

I don't know why the WaPo results are so different from the others.
Perhaps there was some effect from WaPo asking a compound question.

BTW, the issue in Heller is
not the trigger lock requirement per se. It's that the there is no
exception allowing the gun to be unlocked in a self-defense
emergency; in the 1977 case of McIntosh v. Washington, the D.C.
Court of Appeals upheld the home self-defense ban against challenges
that it violated equal protection and the common law right of
self-defense. The McIntosh court agreed with D.C's lawyers and
recognized the statute as an absolute ban on home self-defense
with any firearm; this was held to be rational because of the number of
fatal gun accidents was (according to the McIntosh court) larger
than the number justiable self-defense homicides with guns.

UPDATE: A reader has supplied some
graphs of the trends in the NY Times
and Gallup polls. If they're too small for you to read comfortably,
click on the graph, and you'll get a bigger version.
34 Comments

American Constitution Society
panel on DC v. Heller

Moderated by Dahlia Lithwick of
Slate, the panel features a discussion with John Payne
(formerly of the D.C. Corporation Counsel's office;
attorney of record on the Brady amicus brief, and
currently head of the NAACP LDF), Carl Bogus (Prof. of
Law at Roger Williams, and lead author on a pro-DC
amicus brief of some historians) and me. The debate was
held at the National Press Club, in Washington, D.C.;
the video and audio are available
here. 12
Comments

In the Supreme Court's Second
Amendment case District of Columbia v. Heller, DC
and its amici frequently cited a then-forthcoming Rutgers L. Rev.
article by Nipissing University assistant history
professor Nathan Kozuskanich, a protégé of Saul Cornell.
DC's
reply brief, filed last Wednesday, cites another
unpublished Kozuskanich
article, this one in the U. Penn. Journal of
Constitutional Law.

A pair of new postings by Clayton Cramer analyze the
J. Constl. L. article, and the Rutgers article.
To call the articles "law office history" might be
unfair to law offices.

Regarding the J. Const. L.article, Cramer
explains how Kozuskanich's theory (that the right to
arms in early Pennsylvania was only for collective
defense of the state) depends on ignoring other
evidence, and on strained, implausible readings of the
evidence that Kozuskanich does present.

For example, Kozuskanich points to the prosecution of
Dr. James Reynolds for "assault with intent to commit
murder." Kozuskanich claims that the prosecution proves
that Pennsylvania's constitutional right to arms did not
apply to individual self-defense.

But as Cramer notes, Dr. Reynolds was never charged with
a crime for his mere carrying of the pistol; he was
charged with a crime because he pointed the pistol and
threatened to shoot someone. The book American State
Trialsobserves that Reynolds "contented himself
with carrying a pistol. And in this he was justified by
every law, human and divine." Certainly no-one at the
trial contended otherwise; so Kozuskanich's claim that
the prosecution for attempted homicide proves that there
was no individual right to own and carry guns is
implausible.

The prosecution's theory of the case was that Dr.
Reynolds, who was in a public place, could have safely
retreated from threatening mob, and that Blackstone's
standards for self-defense require such retreat. The
jury, however, acquitted Dr. Reynolds.

The Reynolds case is a good example of the beginning of
the split between the more restrictive British standards
of self-defense, and the new, more liberal American
standards. That conflict on self-defense standards
continues to the present day. But arguments about the
boundaries of self-defense (such as whether there is a
duty to retreat if possible) certainly do not disprove
the existence of a constitutional right of individuals
to have guns for personal self-defense.

Joseph Olson and Clayton Cramer, in
an article in the Georgetown Journal of Law and
Public Policyoffer numerous examples of Founding
Era usage of "bear arms" to mean carrying guns in a
non-military setting. Tellingly, Kozuskanich simply
ignores the Olson/Cramer evidence, for that evidence
demolishes Kozuskanich's theory.

Cramer's
critique of the Rutgers article observes that
Kozuskanich actually cites Michael Bellesiles, who was
forced to resign from Emory after the proof (brought
forward by Clayton Cramer, James Lindgren, and others)
that Bellesiles had falsified his data, including his
data on the very point for which Kozuskanich cites him
(the supposed scarcity of guns in early America).

Article XIII of the Pennsylvania Constitution of 1776
guaranteed "That the people have a right to bear arms
for the defence of themselves and the state." The
opening language, "That the people have a right", was
identical to Articles X, XII, and XVI, which guaranteed
the individual rights to freedom from unreasonable
search, free speech/press, and petition/assembly.

Kozuskanich quotes extensively from the Pennsylvania
Convention's debates on Article VIII of the
Constitution--affirming that everyone is bound to serve
in the militia, or pay "an equivalent thereto" (that is,
a fee whereby conscientious objectors could be excused
from serving personally). Kozuskanich claims that the
Article VIII debates prove that there was no individual
right to arms for self-defense. As Cramer notes, this is
silly. The Article VIII debates were not, of course,
about an individual right, which was the subject of a
separate article; the Article VIII debates involved the
scope of a duty.

Kozuskanich's approach to Pennsylvania is similar to the
approach that his mentor, Prof. Cornell, uses for St.
George Tucker (the leading constitutional scholar of the
Early Republic): quote Tucker's words about
congressional militia powers arising from Article I of
the federal Constitution, and claim that those words
prove that the Second Amendment does not involve arms
for personal defense. (For more on this latter point,
see Stephen Halbrook's
article in the Tenn. J. L. & Pol.24
Comments

Last May, after
the D.C. Circuit
Court of Appeals
ruled in District of
Columbia v.
Heller that
the D.C. handgun
ban violates the
Second
Amendment,
Harvard Law
School Professor
Larry Tribe was
contacted, and
asked if he
would like to
write an amicus
brief in support
of Heller. Tribe
wrote back to
Heller's
attorneys that
he did not want
to do an amicus
brief, but he
would be
interested in
exploring his
playing a "more
central role"
in the case.
Tribe urged that
he could be
effective with
the center and
left-of-center
Justices.

The only "more
central role"
than that of
amicus-writer is
that of
co-counsel for
Respondent. And,
obviously, the
only position of
a counsel for
Respondent would
be in favor of
affirmance of
the favorable
judgment below.
Of course a
counsel might
offer a
different theory
for why the
decision should
be affirmed.

Today in the Wall Street
Journal,
Professor Tribe
penned
an op-ed
urging that the
decision of the
Court of Appeals
be reversed; he
argued that the
Second Amendment
guarantees a
real individual
right (not
militia-men
while in militia
service), but
declared that a
complete ban on
handguns passes
"any plausible
standard of
review."

Professor Tribe
has the right to
change his mind,
but the air of
forceful
certainty with
which he today
argues for
reversal seems
inconsistent
with his
unrequited offer
from ten months
ago to play a
"more central
role" in
securing
affirmance.
41 Comments

McCain's birth, Russian language version

In this Russian-language radio broadcast for Radio Free Europe/Radio Liberty, I add my own thoughts to the controversy. Synopsis: the issue hasn't been clearly settled by the courts, but most legal scholarship supports McCain's eligibility. His eligibility is strongly supported by the fact that he was born on American soil, since he was born in the Canal Zone. The clause was intended to prevent dual loyalty, which is not an issue in McCain's case, since he was an American citizen at the moment of his birth, and he was never a citizen of Panama or any other nation. Thus, this is an easier case than someone who was born on foreign soil, and who received foreign citizenship as a result of that birth. (E.g., a child born to American private-sector workers who were living in Ireland at the time of the birth; although I argue that even in this case, most legal scholarship would favor that child being considered "a natural-born citizen.")

Palestinians as
"the most
oppressed people
on Earth"

I've seen
various Internet
sites claiming
that in Iowa,
Senator Obama
called
Palestinians
"the most
oppressed people
on Earth." Can
commenters
supply
information
about an
original source
(rather than a
third-hand
Internet claim)
about whether
Senator Obama
really said
this? Even if
one accepts the
theory that
Israel is
entirely
responsible for
Palestinian
"oppression,"
and that the
Palestinians
(unlike, for
example, the
East Germans in
1946) bear no
responsibility
for their
current
situation, it
seems
preposterous for
anyone to
believe that
Palestinians are
more oppressed
than, say,
Darfuris or
North Koreans.
Accordingly, I
hope that the
quote is just an
unfounded
Internet rumor.

Update:
Impressively
fast reader
comments explain
that Obama never
said such a
thing; the
"quote" is a
very garbled
version of
something he did
say, and which
is a very
mainstream
observation.

Further update:
I participate in
the ListServ of
the National
Council of
Editorial
Writers. One of
the main
purposes of the
ListServ is to
provide
information
about astroturf
letters to the
editor, or about
other LTE
issues. I sent a
memo to the
ListServ
explaining that
the purported
Obama quote is
fake; thanks to
VC commenters
for helping to
expose the truth
about the false
quote.
32 Comments

Media miscoverage of the role of
man-made chemicals in disrupting human or animal
reproduction

That's the topic of my
media column in today's Rocky Mountain News.
The column also expresses skepticism about the benefits
of Gannett buying Colorado's leading college newspaper,
about media coverage of Obama and Clinton, and about
Maureen Dowd.9
Comments

Geographical Gun Control Research
Project

David Bernstein
recently noted Illinois State Senator Barack Obama's
1999 proposal for a federal law against licensed
firearms dealers operating within five miles of a school
or park. Every town I've ever visited which has more
than a few dozen inhabitants has either a school or a
park. Hypothesizing that the ban would apply to city
parks (e.g., Central Park in New York City) but not to
National Parks, pick a geographical region, and describe
where a licensed firearms dealer could operate. Or pick
a geographic point (e.g, Houston) and identify how far a
person would have to drive in order to get to the closest
point where a gun store could legally be located. Extra
credit for illustrative maps. 43
Comments

Podcast on Framing Brief in DC v.
Heller:

At
iVoices.org, I interview Hamline law professor Joe
Olson for 44 minutes about the Academics for the Second
Amendment
brief he co-authored in District of Columbia v.
Heller. The brief addresses many of the same issues
about the framing of the Second Amendment as those
raised in a
brief written by Carl Bogus (Roger Williams Law
School), Jack Rakove, Saul Cornell, and others. The
podcast is available in MP3 or streaming format.8
Comments

The Human Right
of Self-Defense

The
final, published
version of
this article
from the
BYU Journal of
Public Lawis now
available. The
article, which I
co-authored with
Paul Gallant and
Joanne Eisen,
argues that
personal
self-defense is
recognized as a
universal human
right, and is
the foundation
of international
law. The article
critiques a
report by
University of
Minnesota Law
Professor
Barbara Frey,
written for the
UN Human Rights
Commission/Council,
which contends
that
self-defense is
not a right, but
is instead, at
most, an excuse
similar to
duress or
insanity.
31 Comments

Is There a Relationship between
Guns and Freedom? Comparative Results from 59 Nations:

That's the title of a
Working Paper that I've co-authored with Howard
Nemerov. Abstract:

There are 59 nations for which data about per capita
gun ownership are available. This Working Paper
examines the relationship between gun density and
several measures of freedom and prosperity: the
Freedom House ratings of political rights and civil
liberty, the Transparency International Perceived
Corruption Index, the World Bank Purchasing Power
Parity ratings, and the Heritage Foundation Index of
Economic Freedom. The data suggest that the
relationships between gun ownership rates and these
other measures are complex. The data show that
(although exceptions can be found) the nations with
the highest rates of gun ownership tend to have
greater political and civil freedom, greater
economic freedom and prosperity, and much less
corruption than other nations. The relationship only
exists for high-ownership countries. Countries with
medium rates of gun density generally scored no
better or worse than countries with the lowest
levels of per capita gun ownership.

Comments are welcome--particularly by commenters who
read the article, rather than wasting time on troll
battles on other issues.

Late last
year, I
wrote about the case of Samuel
Golubchuk, an elderly Canadian man
whom his doctors wish to euthanize,
over the strong objections of his
orthodox Jewish family. (Hastening
someone's death by withdrawing life
support is known as "non-aggressive
euthanasia.") A
recent policy statement from the
College of Physicians and Surgeons
of Manitoba, asserts the power and
the duty of physicians to euthanize
patients, notwithstanding the
objections of the patient or his
family. Last week, a Winnipeg trial
court
issued an injunction requiring
continued care for Mr. Golubchuk,
pending a full trial on the merits.

According to the decision,
Golubchuk's relatives

have produced an affidavit of a
neurologist who practises in New
York and has reviewed the entire
hospital record of Grace
Hospital. He has noted an
absence of any examination of
the plaintiff by a neurologist,
any brain-imaging such as with
CT scan or MRI, or other
measurement of brain activity.
He stated that the record
contains many references to the
plaintiff being awake and making
purposeful movements that have
not been reported by or
explained by the defendants’
deponents. He stated that the
plaintiff has not been assessed
for aphasia, locked-in syndrome
or other treatable neurological
illnesses, which could account
for his apparent lack of
consciousness. He concluded on
that point:
11. Furthermore, according to
the documentation in the medical
records, Mr. Golubchuk’s
condition has demonstrably
improved (Exhibit “D”). There is
no evidence whatsoever that he
is brain dead, close to brain
dead, or dying, from a
neurological point of view. He
has enough higher cognitive
function to not only be
considered awake but to make
frequent, purposeful movements
and engage in other purposeful
activities.

The court rejected the hospital's
claim that settled law allowed a
physician to terminate
life-sustaining treatment over the
objections of a patient or family.
Further, wrote the court, it was
possible that Golubchuk had a right
to treatment under the Canadian
Charter of Rights and Freedoms, or
the common law. In light of the
balance of equities (that Golubchuk
would suffer an irreparable injury,
namely death, without an
injunction), the court enjoined the
hospital from euthanising Golubchuk
pending trial on the merits.

I was surprised to find that the
name of the hospital that wants to
euthanise Golubchuk is the Salvation
Army Grace General Hospital, which
according to its
website, is a "faith-based"
facility.

A
new article in the
Cato Journal,
by Robert Krol, examines
various strategies for
limiting government
spending growth. He
finds several methods to
have proven success: Tax
and Expenditure Limits
(such as those in
Colorado’s Taxpayer Bill
of Rights), balanced
budget requirements (a
long-standing
requirement in
Colorado), and citizen
initiatives (part of the
Colorado Constitution
since the early 20th
century). In contrast,
two methods have been
shown not to work: Rainy
Day Funds (which are
often used to avoid tax
and spend limitations),
and term limits (which
are actually associated
with higher
spending; legislative,
but not gubernatorial,
term limits are
associated with lower
taxation).

Web design
bleg

I manage
website A with MS Frontpage 2003. On
one of the pages on site A, I would
like to include the most-recent
contents of an RSS feed from site B
(which is a Typepad weblog). How do
I accomplish this?
10 Comments

Rob Natelson,
the Spending Power, and Fiduciary
Duty:

A
recent article in the Texas
Review of Law and Politics, by
my Independence Institute colleague
Rob Natelson (who is also a
constitutional law professor at the
University of Montana) applies some
cultural context to the original
meaning of the spending clause.

At the time of the Founding, the
legal principles of "fiduciaries,"
"servants," or "agents" were
well-known. A
fiduciary/servant/agent was expected
to act impartially, not for his own
self-interest, on behalf of the
principals. For example, if a person
were the trustee of an estate for
three children, the trustee would be
required to give each of the
children equal earnings from the
trust. (Unless there were a good
reason not to. i.e., the one child
was independently wealthy from other
income; one child had made an
improvident marriage).

Natelson argues that the fiduciary
principles are incorporated into the
Constitution, and provide the basis
for "rational basis with bite"
review of congressional spending.
(That is, until the 1936 Butler
case is over-ruled, and Congress
is again required only to spend in
furtherance of enumerated powers,
rather being allowed to spend for
anything it chooses.)

For example, Congress spends money
to establish a National Institute of
Obesity Research in Mississippi. The
spending will provide a much greater
financial benefit to Mississippi
than to any other state, but the
purpose of the NIOR is clearly to
benefit the entire nation, by
improving everyone's health. This
spending passes the rational basis
with bite test.

In contrast, consider the earmark
which former Senator Conrad Burns
created, in order to provide funds
for capital construction at the
University of Montana Law School.
This would appear to be
special-interest spending for the
benefit of a single state, not for
the nation as a whole. Such spending
would fail the rational basis with
bite test. If, perhaps, Congress
made a finding that some states were
chronically underlawyered, and
provided capital construction grants
for expanded law school facilities
in all such states, then the
spending might pass the Natelson
test. (The above examples are my
own, not Natelson's, although he
does cite the Montana earmark as an
example of pork.)
2 Comments

David Young
on the pro-DC Historians Brief in DC
v. Heller

Published
today on History News Network,
an article by David Young which
critiques
an amicus brief filed by 15
history/law professors, arguing
against the standard model of the
Second Amendment. If you would like
a copy of the article with
citations, just go to
Young's website, and e-mail him
a request. If you are interested in
studying the original documents
about the Second Amendment from the
Founding Era, Young's book The
Origin of the Second Amendment is an outstanding, and amazingly
thorough resource.
13 Comments

Originalist
Analysis of George Washington and
Establishment of Religion:

The Texas
Review of Law and Politics has a
review of the new book by
co-authored by my Independence
Institute colleague Joseph C. Smith,
Under God: George Washington and
the Question of Church and State.
The book examines Washington's views
and practices on issues of related
to government support of religion.
The book concludes that Washington
was far less concerned about
separation of church and state than
were Jefferson and Madison, and that
Washington's views deserve greater
consideration from modern courts
than they have received.
25 Comments

Best
Pro-Hillary Video Ever

A short video statement from a
friend of mine, whose family lived,
and still lives, one block from the
World Trade Center. She describes
Senator Clinton's role in asking the
tough questions about air quality
near the WTC in the weeks and months
after the attack. The video is a
powerful, personal, and credible
testimonial to the best side of the
detail-oriented Senator Clinton.
59 Comments

Audio/video
on the Amicus briefs in DC v. Heller

Heritage
Foundation
event last Thursday, Senators
Kay Bailey Hutchinson (R-Texas) and
Jon Tester (D-Montana) discuss their
congressional amicus brief in D.C. v. Heller. Independence
Institute
iVoices.org podcast, in which I
discuss the law enforcement amicus
brief I wrote. Tonight on
NRA News, at 11:20 Eastern Time,
I will be interviewed about the
brief. (The broadcast is available
on Sirius 144, and on the Internet,
and is available by podcast for the
day after the program.)
4 Comments

The Fifth
Circuit Ban on Sex Devices:

The 2-1
Circuit Court of Appeals
decision against the Texas ban
was rightly decided, at least
according to
an article that Glenn Harlan
Reynolds and I wrote for the Hastings Constitutional Law
Quarterly. The 5th Circuit
decision relies, reasonably, on Lawrence v. Texas. Although our
article is pre-Lawrence, we
suggest that such cases amount to a
judicial re-invigoration of
traditional understandings of the
police power--and a rejection of
view that state authority is a
limitless ocean in which a few
islands of rights may be found.
Rather, the police power is itself
finite, and simply is not broad
enough to reach conduct such as that
banned by the Texas statute.

A group of
retired military officers, mostly
Generals or Admirals, has
filed an amicus brief in District of Columbia v. Heller.

Part I of the brief looks at framing
of the Second Amendment, and
importance of federal control of the
militia for national defense. The
brief argues that DC's theory allows
the states (including DC acting in a
state-type role) to destroy the
effectiveness of the militia by
preventing citizens from having
arms. The brief suggests that DC's
argument is contrary to the
constitutional plan for federal
militia supremacy.

Part II argues that the widespread
citizen gun ownership is essential
to the national defense, because
soldiers who have prior experience
with gun use as civilians make much
better marksmen. Because handguns
are common in military use, handgun
experience is highly relevant. This
is similar to the police training
argument that I made, on behalf of
law enforcement firearms training
associations, in
my own brief, although the
military argument is much more
extensive.

Finally, the brief explains how
citizens, even those not serving in
the standing army, contribute to the
national defense. Examples are the
American Revolution, the Battle of
New Orleans, and the defense of
Alaska and Hawaii after Pearl
Harbor. There is also a good
discussion of Switzerland during
WWII.

The Appendix includes letters to the
National Rifle Association by
Presidents Roosevelt, Truman,
Eisenhower, and Kennedy, and by
several FDR officials, thanking the
NRA for its role in promoting
civilian marksmanship as a means of
aiding national security.

No brief filed by Petitioner or its
amici addresses these issues.

Below the fold: Maryland Governor
Herbert O'Connor's March 10, 1942
radio address, asking for volunteers
from, inter alia, the "membership
rolls of Rifle Clubs, Trap Shooting
Associations, Skeet Clubs and
sportsmen's groups of every type" to
help defend Maryland against
potential German incursions, such as
saboteurs. "[T]he volunteers, for
the most part, will be expected to
furnish their own weapons....The
Maryland Minute Men, armed with
weapons with which they are
thoroughly familiar from long use,
operating in a community in which
they are accustomed to every road
and trail and stream, and aroused to
fighting pitch by the knowledge that
they are serving to protect their
own homes, their family and all that
they hold dear in life, will prove a
staunch defense against any enemy
activity."

THE sincere hope of every person
in Maryland is that our State
may never experience invasion or
attack. That we should consider
such a thing as possible is in
itself a terrible shock to the
American state of mind.
Nevertheless, with so much of
the world overrun by the enemies
of Democracy, and with the
invasion of Java and New Guinea
as well as other points in the
Australian Archipelago fresh in
our minds, we would be foolish,
indeed, not to be prepared, as
completely as possible, for any
such happening, even here in
Maryland.

Our people didn't want this war
and, prior to the dastardly and
cowardly attack on Pearl Harbor,
the thought of sending American
troops to fight in far-away
lands was abhorrent to the minds
of every American. Recent
developments of the most
threatening nature, however,
have completely changed
America's attitude toward the
present conflict. The unexpected
and continuing success of the
Japanese forces, who have swept
everything before them except
General MacArthur's heroic band
in the Philippines, have
impressed on our minds most
forcibly that new tactics are
demanded.

That is why, in the recent past,
there has become evident a
tremendous demand on the part of
Americans everywhere, that our
leaders forsake a defensive
policy and pursue this war in
typical American fashion by
carrying the offensive to the
enemy at every possible point.

But this plan, if adopted, will
make necessary additional
protective forces in the states
of our Country, particularly
those like Maryland, situated
along the coastlines. It is
about this matter of necessity
that I desire to speak to the
people of Maryland tonight.

Let us review briefly the
various steps, and then consider
why and to what extent Maryland
confronted with danger and what
we must do at once to protect
our citizens. The Federal
Government faces the tremendous
task of training the largest
military and naval establishment
in our Nation's history. After
the hundreds of thousands, and
even millions, of our men are
trained and equipped, they must
be transported, far and wide,
over the seven seas to overcome
the enemy outside continental
United States. Every available
man in the combat forces will be
needed in this far-flung
offensive. This means that if
any number of soldiers, trained
for military operations, would
be retained within the United
States for guard duty, or for
any other routine defense
purpose, that would entail a
loss to our Country's striking
power.

The Federal Government, of
course, is the one which assumes
the responsibility for the
conduct of war. But the State
Government has its obligation,
also, to its citizens. That
obligation includes protection
to our people. It was for this
reason that more than a year ago
I asked the Maryland General
Assembly to authorize the
creation of the State Guard, the
primary purpose of which was to
have a mobile protective force
ready to move in any direction
to maintain the safety and
security of our people and their
property. It is with pleasure
that I can report to our people
that the State Guard is
completely drilling.

The State Guard numbers
approximately 2, 700 officers
and men. Supplementing it is a
Special Military Police Force,
the members of which are on
continuous duty and assigned
exclusively to the guarding of
our State's bridges, important
water supplies, and other vital
points, described by the War
Department as having important
bearing on the war effort. The
number of this force is
approximately 300.

To the credit of the members of
our present Guard, it can be
said that they have responded to
every requirement since our
Nation entered the war, despite
unexpected difficulties under
which they have at times been
required to perform their
duties. The public will
understand that up until now the
State's defensive efforts have
consisted mainly in protecting
those installations and
locations which the War
Department consider as vitally
important.

Now, however, a greater possible
danger must be faced by our
people. Situated as we are and
exposed as our State is, we must
be prepared for the worst. Since
the outbreak of hostilities at
Pearl Harbor, I have been in
touch, at regular intervals,
with United States officials who
have imparted information
revealing the danger that besets
us. I owe it to the people of
the State to report that we are
in jeopardy, and that we must be
prepared for trouble both from
without and from within our
State.

Only today, for instance, have I
been advised by the Commanding
General of the First Army, in
New York, that the presence and
increasing activity of enemy
submarines off the Maryland
Coast require additional drastic
measures.

With the prospect that the
regular Army units will be
engaged in more important
operations elsewhere, and with
our State Guard and Military
Police assigned to particular
functions, it is felt absolutely
necessary to have an additional
protective force-: as a home
guard-for the protection of our
various communities. Competent
military officers, one of whom,
our capable and experienced
Major General Milton A. Reckord,
will speak to you in a few
minutes, advise that there is
need of this further,
wide-spread, alert defense
organization to cope with and to
be available instantly for any
sudden attack by parachute
troops, by forces landed from
the sea by enemy sympathizers
within our State.

I propose to meet this need by
the organization in every part
of the State of a Reserve
Militia. The completed plan has
just been approved by General
Reckord, as Commander of the
Third Army Corps. It offers the
opportunity for every
able-bodied man to assist in
protecting his home and his
community against enemy
activities. The militia will be
organized under our State Law,
and the men who enlist at this
time of our grave emergency will
be known as the "Maryland Minute
Men."

The mission of the Maryland
Minute Men is to furnish
immediately, local protection
against parachute troops,
saboteurs, or organized raiding
parties. It is planned that the
units be confined to their own
communities so that there will
be assurance at all times that
every residential section of
Maryland will have protection.

No prescribed complete uniform
will be required. Distinctive
arm bands and caps or other
items may be furnished by the
State, the County, or by the men
themselves. For the present the
hard-pressed Ordinance
Department of the United States
Army cannot be expected to
furnish sufficient arms,
ammunition, or equipment. Hence,
the volunteers, for the most
part, will be expected to
furnish their own weapons. For
this reason, gunners (of whom
there are 60, 000 licensed in
Maryland), members of Rod and
Gun Clubs, of Trap Shooting and
similar organizations, will be
expected to constitute a part of
this new military organization.

Officers will be drawn from the
immediate area in which they are
to serve. As Army officers have
pointed out to me, the
familiarity of the members with
their particular locality, with
the terrain and road not in the
respective communities, will be
of great value in resisting any
hostile efforts against
residential areas and important
public necessities.

No intensive training program
will be adopted. While
sufficient preparatory work must
be undertaken by the Minute Men,
care will be taken to avoid
unnecessary demands upon their
time. No guard duty is to be
included as a regular part of
the program for the new force.

Retired officers of the regular
Army, Marine Corps or State
Guard will be sought to
supervise the training. The
program will embrace basic field
training and basic small arms
instruction. The field training
will include the study of
terrain from the military
viewpoint, establishment and
maintenance of communications,
practice assemblies in daylight
and in dark, and other courses.
Arms instructions will cover
teaching how to load and unload
weapons, examination of weapons
as to working order; effective
firing positions, special
instructions in sighting and
aiming, rapid firing technique,
and other duties.

Military officials, in
emphasizing the value of such an
organization point out that the
familiarity which the members
will enjoy with the faces,
customs and habits of their
neighbors in the community,
makes them most valuable in
combating sabotage efforts. They
will detect, even more quickly
than a secret service man from
the outside, any strange faces
in the community, or any unusual
activities on the part of local
inhabitants.

The Maryland Minute Men, armed
with weapons with which they are
thoroughly familiar from long
use, operating in a community in
which they are accustomed to
every road and trail and stream,
and aroused to fighting pitch by
the knowledge that they are
serving to protect their own
homes, their family and all that
they hold dear in life, will
prove a staunch defense against
any enemy activity.

Through conferences among the
Military, Naval, State Guard and
Minute Men officials, operation
plans for each area will be
carefully prepared, I am assured
by the Third Corps Headquarters.
Surveys will be made to
determine the importance of
facilities and installations
which might be subjected to
sabotage and raids; the
availability of Military and
Naval police and State Guard
forces; and the quality and type
of communications which are
available for notification for
additional protective forces
when necessary.

Based on these surveys, definite
missions will be assigned each
of the organizations concerned;
and the proper liaison will be
arranged. All available firearms
will be reported and those
individuals to be armed with
rifles will be assigned to tasks
where the long-range and
accurate fire of rifles will be
necessarily employed. Those to
be armed with shot guns will be
assigned tasks where the short
range, spreading fire of shot
guns will be most effective.

As I attempted to outline
before, no unnecessary
discipline and training will be
required. However, as this is
serious business there will be
exacted from all members
obedience to orders, sobriety,
and self-sacrifice. Military
advisors suggest that time need
not be spent on close-order or
other military drill. It is not
intended that this be a parade
organization. But officers and
men must be willing to cooperate
and to devote time and work to
meet any local situation.

I should also point out another
cardinal rule of the new
organization. We all know that
an enemy raiding party does not
stop to give considerations to a
victim's social background, or
to his political affiliation, or
to class distinction. Therefore,
I give assurance that such
considerations will completely
absent from the organization,
training and discipline of the
Maryland Minute Men from top to
bottom.

I now issue a call for
volunteers to serve as Maryland
Minute Men. Arrangements have
been made to accept enlistments
at once. State headquarters for
the new organization will be the
Office of the Adjutant General
of Maryland, Fifth Regiment
Armory, Baltimore.

However, persons can make known
their readiness to serve at any
of the State Armories, one of
which is located in all the
counties of Maryland except
five. In these five counties;
where no armories exists,
namely, Garrett, Howard, St.
Mary's, Calvert and Charles
Counties, other headquarters
will be established, the
location of which will be made
known through the local press.

Already arrangements are made to
receive group enlistments from
the membership rolls of Rifle
Clubs, Trap Shooting
Associations, Skeet Clubs and
sportsmen's groups of every
type. The number of units to be
formed in different sections of
the State will depend upon the
size and population of the area
and also upon the important
public facilities and military
objectives, which are designated
by the War Department in
different sections of our State.

I wish to repeat that in every
move, with respect to this
organization, the advice and
direction of Army officials will
be sought, as has been the
practice in connection with the
organization and functioning of
the Maryland State Guard.

And so, my fellow-Marylanders, I
ask your support and assistance
in this new undertaking which
will be maintained at a minimum
of expense. It will however,
represent a maximum of
protection by civilian soldiers,
whose first duty it will be to
stand in defense of their home,
in protection of plants and
facilities which are essential
to life.

To these men, many of whom will
be veterans of the last war, who
incidentally may have "chafed at
the bit" when they have observed
their sons and younger men
marching away recently to the
Country's defense, let me say
that here is an opportunity that
will make them truly an
important part of the public
defense forces. Here is a
function of military
organizations to which they can
address themselves with
enthusiasm, because it will be
of utmost importance and will
thereby release a number of
regular Army forces for combat
service abroad.

Inconvenient, yes; overtime
work, yes. But let us remember
that hardships and privations
are now being suffered for us by
General MacArthur and his
valiant men in Bataan. Those who
do not leave United States as a
part of the armed forces to
avenge the wrong done to
Americans and to the United
States flag abroad, will be
untrue to these American boys if
we do not protect their homes
and their communities while they
are away fighting for us. Let us
preserve the communities and
their firesides, so that there
will be a familiar place to
which they will be welcomed on
their return after victory has,
been won.

The flower of America's young
manhood now being sent to
distant parts of the world will
face the period of hardship and
discouragement. But like the
Crusaders of old, they are
privileged to fare forth to free
a land of civilization from the
Barbarians.

America's Crusade today is to
wipe the scourge of slavery from
a world of Hitler and the
Japanese war lords, and to
establish once and for all time
the freedom of man and his
dignity as an individual, and
this should awaken a responsive
chord in every heart.

No, we didn't want this war. We
went to all lengths to avoid it.
And in so doing we laid
ourselves open to just the very
reverses that lack of
preparedness has occasioned. Now
that we are in this war,
however, now that we know how
necessary it is to fight as we
have never fought before, not
only to defend our Democracy,
our own freedom, but to bring
back freedom to all the enslaved
people of the earth, we know
America shall not fail. Maryland
today, as in every other crisis
in our Nation's history, pledges
itself to stop short of nothing
to preserve American ideals and
American privileges for
generations to come.
All Related Posts (on one page)
| Some Related Posts:

In the
Supreme Court's Second Amendment,
the American Bar Association filed
an amicus brief in support of
the DC handgun and self-defense ban.
The brief argued that respect for stare decicisshould compel the
present Court not to recognize the
Second Amendment as an individual
right.

A related brief was filed by the
District Attorney of San Francisco,
joined by 17 other District
Attorneys (including 5 from New
York, and 4 from California). The
brief makes its own argument about
stare decisis, and warns that
affirming the D.C. Circuit's
recognition of an individual right
would lead to vast challenges to
federal and state laws against gun
possession by convicted criminals,
as well laws providing sentence
enhancements for use of a firearm in
a crime.

These arguments are addressed in
pro-Heller amicus brief of the
Maricopa County District Attorney,
which is joined by 12 other District
Attorneys (including Hamilton
County, Ohio, and Carroll County,
Maryland).

In Parts III and IV of the
brief, Maricopa points to state
cases from Arizona and federal
cases from the Fifth Circuit, to
show that application of a
strong standard of review for
the individual right to arms
does not lead to the wholesale
invalidation of gun control
laws. Accordingly, the Maricopa
brief argues for strict scrutiny
as the proper standard of
review. (My own
brief, filed on behalf of a
law enforcement coalition
including 29 California District
Attorneys, also supports strict
scrutiny, and has a short
discussion of state right to
arms cases upholding bans on gun
possession by criminals.)

Parts I and II of the Maricopa
brief present some standard
textual and legal history
arguments for the Second
Amendment as an individual
right. As in so many of the
amicus briefs, it would have
been better if the brief had
omitted points which were
already made in Respondent's
brief.

Perhaps the most important
argument--which I wish would
have been a major Part of
somebody's brief--is connecting
the Second Amendment to the
substantive due process line of
cases. Justice Harlan's
definition of Fourteenth
Amendment "liberty" in his Poe v. Ullmandissent
included "the right to keep and
bear arms." This definition has
been repeated many times in
important cases in which the
Court has protected unenumerated
rights, including Griswold,
Roe v. Wade (Stewart
concurrence), Moore v. East
Cleveland(right of extended
family to live together), Casey v. Planned Parenthood (Kennedy-Souter-O'Connor
opinion), and Lawrence v.
Texas. The point is not that
the right to arms is dependent
on substantive due process;
rather, the point is that the
key modern cases for
unenumerated "liberty" rights
all acknowledge the right to
arms.

The brief of Grass Roots South
Carolina does a reasonable job
of arguing for the right to have
a handgun in one's home as
within the penumbral protection
of constitutional "privacy", but
that brief too overlooks the
force of Justice Harlan's Poe
language, which is clearly
beloved by Justices Kennedy and
Souter.

The other brief which address
the "don't disturb precedent"
argument is
the one from the
Center for Individual Freedom.
It argues that the Court's 1939
Miller case was
ambiguous, and thus set no
anti-individual rights
precedent. The brief discusses
various circuit court of appeals
decisions which have, in
purported reliance on Miller,
ruled against an individual
right; the brief argues that
these over-reading cases deserve
little respect as precedent.

Part II argues that the
"collective/states right"
interpretation would, if
actually endorsed by the Court,
lead to drastic changes in
current practices: states would
have the right to sue the
federal government over militia
issues, to claim authority to
disregard federal gun controls
which interfere with the states'
militias (e.g., a Rocky Mountain
state legislature enacts a law
declaring all able-bodied adults
to be part of its militia, and
ordering those adults to arms
themselves with, inter alia,
machine guns and mortars), or to
challenge federal deployment of
National Guard units outside a
state's boundaries

Rather notably, the ABA and San
Francisco District Attorney
briefs failed to point to a
single case anywhere in the
nation where a
felon-in-possession law or a
sentencing enhancement for
actual use of a firearm in a
violent crime was declared to
violate a state constitutional
right to arms.

A brief of the Citizens
Committee for the Right to Keep and
Bear Arms, and for several scholars,
takes an unusual approach. As far as
I know, it's the first brief of its
kind in a Supreme Court brief
(although my knowledge of amicus
briefs is far from comprehensive).
Written by Washington state lawyer
Jeff Teichert, the "Errors Brief"
focuses entirely on refuting what it
sees as plain errors in the briefs
of DC and DC's amici. The 9000 word
limit drastically reduced the number
of items which could be addressed,
and the brief chooses to address
some items at relatively great
length, rather than greatly
shrinking certain discussions so as
to address more items briefly.

The
brief of the Goldwater Institute
in District of Columbia v. Heller is
another brief that merits study by
persons interested in seeing a model
of a first-rate Supreme Court brief.
Lawyers on the brief are led by
Bradford Berenson, of Sidley &
Austin, and by Clint Bolick, of
Goldwater.

The brief's focus is responding to a
section in the
Solicitor General's brief, which
had argued for intermediate scrutiny
as a the standard of review in
Second Amendment cases. The
Goldwater brief is not a brief of
firearms law experts; it is the
brief of Supreme Court precedent
experts, and it cites a vast number
of cases to make its argument that
strict scrutiny is the proper
standard.

The Goldwater brief has an inherent
advantage, since it devotes all 9000
words to a topic which the Solicitor
General covered in just a few pages.
But even with the limited space
available, the Solicitor General's
brief was surprisingly shallow. The
SG brief more or less declares its
intermediate scrutiny test by fiat,
and for support pointed to some
election law cases.

Yet a short, well-written
brief from the Libertarian National
Committee points out, the cases
cited by the Solicitor General
themselves have a strict scrutiny
standard. (Strict scrutiny for an
"undue burden" on voters,
intermediate scrutiny for everything
else.) The Solicitor General brief
just pointed to the intermediate
scrutiny part of the election cases.

My guess is that there was something
odd in the drafting of the Solicitor
General brief. The brief was filed
electronically late in the day when
it was due. (UPDATE: A VC reader
points out that the meta-data for
the SG's PDF says that the file was
created at 9:14 PM on January 11,
the due date.) The brief has no
Table of Contents or Table of
Authorities--both of which are
required by Supreme Court rules. My
guess would be that there was no
time to prepare these mandatory
parts of the brief because the brief
took a sudden change in direction,
perhaps on the day it was due, and
all the available time was consumed
by trying to cobble together an
intermediate scrutiny section of the
brief. Just a guess, but the absence
of a TOC and TOA surely suggests
that there was some unanticipated
time crunch at the end. (UPDATE:
Another commenter says that the SG
frequently files late, and adds the
TOC and TOA later.]

Thirty-one
state Attorneys General
filed an amicus brief in support
of Heller. Part I.A. is a solid
textual and historical argument for
the Second Amendment as a meaningful
individual right. Well-written, but
I'm not sure it adds much to the
treatment of these issues in
Respondent's brief. Part I.B. adds
some material on post-Miller cases
in which the Supreme Court
acknowledged the Second Amendment as
similar to other Bill of Rights
provisions (e.g., Konigsberg,
Eisentrager).

Part II supports the D.C. Circuit's
having found the handgun and
self-defense bans to be facially
unconstitutional, and takes on the
Solicitor General's argument for
intermediate scrutiny in Second
Amendment cases. The Attorneys
Genera argue for strict scrutiny. In
Part III, the Attorneys General
reassure the Court that none of the
laws which the Solicitor General
worried about (felon-in-possession
ban, machine gun ban, undetectable
firearms ban) would be endangered by
strict scrutiny.

On page 23, note 6, the Attorneys
General likewise signal that they
are not worried that the Second
Amendment would endanger appropriate
gun controls in the states, for the
Attorneys General announce that the
Second Amendment should be
incorporated.

It may be that the incorporation
issue explains why some state
Attorneys General stayed neutral,
rather than join the 31. It is also
interesting that Illinois, which
joined New York's amicus brief in
favor of D.C.'s cert. petition, is
neutral at the merits stage.

In January,
former Attorneys General Janet Reno
and Nicholas Katzenbach, joined by
11 former important US DOJ lawyers
filed
a brief in support of the DC
handgun ban. The brief argues that
from the 1930s until 2001, the US
Department of Justice had the
position that the Second Amendment
does not guarantee an individual
right. The brief argues that the DOJ
supported the "collective right"
theory, and appears unaware that
this theory has been abandoned even
by gun control groups and their
academic allies. (The replacement is
"narrow individual right," a right
which applies only to persons
actually on duty in a state
militia.)

Today
a counter-brief was filed on
behalf of two former Attorneys
General (Edwin Meese and William
Barr), two former Acting Attorneys
General (Stuart Gerson, under
Clinton; and Robert Bork, under
Nixon), and several other former
high-ranking DOJ lawyers.

The brief begins by describing three
different cases (under Presidents
Andrew Johnson, Ulysses Grant, and
Benjamin Harrison) in which the the
US DOJ took the litigation position
that the Second Amendment is a broad
individual right. Next, the brief
quotes FDR's AG Homer Cummings,
testifying in support of the
proposed National Firearms Act of
1934, who explained that the Act was
not a violation of the Second
Amendment because it taxed and
registered machine guns and short
shotguns, but did not ban them. The
Reno brief had attempted to claim
that Cummings was discussing the
scope of congressional Article I
power, but omitted the fact that
Cummings was answering a
Representative's question about the
NFA "escaped" from the "provision in
our Constitution denying the
privilege to the legislature to take
away the right to carry arms."

There then follows an intricate
analysis of positions in DOJ briefs
in future years, Office of Legal
Counsel memoranda, and Presidential
bill-signings. The argument is that,
contrary to the Reno brief's claims,
the Executive Branch position was
not consistent with the position of
Attorney General Katzenbach that
there is no individual right to
arms.

Part II responds to arguments raised
by the Reno brief, and by the
current Solicitor General, that the
rule announced by the D.C. Circuit,
invalidating the handgun ban, would
threaten federal laws against
possession of guns by convicted
felons, or against machine guns.
Part III urges the Court to confine
its ruling to DC's ban on handguns
in the home, rather than addressing
restrictions on uncommon guns.

Both of the former DOJ briefs might
be viewed in a broader context. One
of the officials in the Reno brief
is former Solicitor General Seth P.
Waxman. On Aug. 22, 2000, Waxman
wrote a letter affirming the
position which the DOJ had taken in
the Fifth Circuit's Emerson case,
that the Second Amendment is no bar
to the federal government taking
away people's guns. Indeed, at oral
argument before the Fifth Circuit,
the DOJ position had been the Second
Amendment does not even prevent the
disarmament of an on-duty
militiaman. Waxman became the first
Solicitor General in history to have
his words reprinted on presidential
campaign billboards. Thanks in part
to the NRA publicizing Waxman's
words, George Bush won narrow
victories, and thus the election, in
strongly pro-gun states such as West
Virginia. The results of the 2000
election represent "a constitutional
moment" repudiating the Waxman/Reno
view of the 2d Amendment--just as an
overly restrictive view of the 1st
Amendment was repudiated by the
public in the election of 1800
(which also was very close, and was
contested for months after the polls
closed). Today, even Senator Hillary
Clinton has moved away from the
Reno/Waxman position; in the final
Nevada debate,
she stated: "You know, I believe
in the Second Amendment. People have
a right to bear arms."

The
brief of Academics for the Second
Amendment discusses the drafting
and ratification of the Second
Amendment. It argues that the
history clearly points to an
uncontroversial individual right to
arms for private purposes, and
argues that DC's theory of the
Amendment's meaning is based on
proposals which Madison and Congress
rejected. My favorite part of the
brief is its use of the phrase "a
tub to the whale."

A
brief from the Institute for Justice
supplies the history of the
Reconstruction Congresses, and of
the 14th Amendment. It shows that
(whatever implications one might
draw about incorporation), the
understanding of the Second
Amendment at that time was that it
was a personal right to arms for
private purposes, particularly the
purpose of defending the homes of
freedmen from Klan attacks.

These briefs counter arguments
raised
by DC and by
its amici historians. As both
these briefs acknowledge, proving
that the 1776 Pennsylvania
Constitution right to arms was not a
right to self-defense arms is
essential to their cause. Strangely,
they cite a forthcoming article in a
Rutgers law review, written by a
protégé of Saul Cornell, which
appears to have not been made
available, in its pre-publication
form, anywhere the public can
review. Keeping that article out of
sight of Heller and his amici
perhaps betrays a grave lack of
confidence in whether that article's
claims could withstand serious
scrutiny. I am unaware of any
pre-publication article that has
been cited by Heller and his amici
which is not already available on
SSRN or another public web site.

Today the
Independence Institute filed my
amicus curiae brief with the
United States Supreme Court, in the
case of District of Columbia v.
Heller.

The Independence Institute brief is
joined by a broad coalition of law
enforcement: the Maryland State
Lodge of the Fraternal Order of
Police (by far the largest
rank-and-file police organization in
Maryland), 29 of California’s
District Attorneys, the San
Francisco Veteran Police Officers
Association, the Texas Police Chiefs
Association, the Southern States
Police Benevolent Association, and
many others.

Notably, the lead amici in the brief
are the two national organizations
of police firearms instructors, the
International Law Enforcement
Educators & Trainers Association (ILEETA)
and the International Association of
Law Enforcement Firearms Instructors
(IALEFI). The brief explains how
widespread civilian ownership of
handguns contributes to the
efficiency and success of police
firearms training.

Part One of the brief summarizes the
vast body of evidence showing how
law-abiding citizens with handguns
contribute to public safety. Surveys
of criminals and of law-abiding
citizens both indicate that
defensive gun use is frequent in the
United States, and provides a
substantial deterrent to crime. Most
notably, because approximately half
of all American homes have a gun,
only 13% of American home burglaries
take place when the victim is home.
In nations where handgun ownership
is rare or illegal, the home
invasion rate is about 50%.

A large number of confrontational
burglaries (nearly a third) result
in assaults or rapes, so defensive
gun ownership in the home also
reduces the assault and rape rates.
The assault reduction alone makes
the U.S. violent crime rate about 9%
lower than it would be if home
invasions took place at the rate
typical in other countries. But in
DC, the use of any gun for
self-defense in the home is illegal.

DC and its amici claim, in effect,
that ordinary, law-abiding citizens
are too hot-tempered and clumsy to
own a handgun for home protection.
Part II of the brief refutes this
invidious prejudice. The brief shows
that the large majority of murders,
including domestic homicides, are
committed by people who already have
criminal records--not by
previously-law-abiding citizens. A
half-century of data show that gun
accidents have declined by 86% in
the U.S.

Before the 1976 handgun ban, only
1/2 of 1% of crime gun seized by the
D.C. police were lawfully-registered
to District residents. Thus, the DC
City Council cracked down on a
population group (gun owners who
obeyed the city's registration and
licensing laws) which had almost
nothing to do with the city's crime
problem.

Part III relies on practical police
experience to explain why handguns
are the best arms for home defense,
particularly in an urban area such
as Washington, D.C.

Part IV suggests that strict
scrutiny is the proper legal
standard of review for most Second
Amendment issues. Precedents from
the U.S. Supreme Court and from
state supreme courts point to the
unconstitutionality of the DC ban on
handguns and on self-defense.

Social science data about
self-defense were little discussed
in the briefs of D.C. and its amici,
except that the American Public
Health Association (APHA)
brief does have a section
arguing against Gary Kleck's figure
of 2.5 million annual defensive gun
uses. Some empirical issues related
to the law enforcement brief are
also discussed in the
American Academy of Pediatrics brief,
and the
D.C. brief itself.

On Monday, the
brief for Respondent was filed in DC v. Heller, the
Supreme Court's case involving the DC handgun ban. The
brief for Petitioners (DC and Mayor Fenty) is
here.

The first portions of each brief raise textual and
historical arguments. DC argues that the preamble of the
Second Amendment ("a well-regulated militia") controls
and limits the main clause ("the right of the people").
DC emphasizes that militias are subject to limitless
state control.

The Heller brief offers well-known rules of construction
from the Founding Era to argue that a preamble doesn't
limit the main clause. Both sides quote Marbury v.
Madison. The Heller brief contains a great deal of
American history, partly based on David Young's new book
The Founders' View of the Right to Bear Arms (2007),
which presents General Gage's disarmament of the
citizens of Boston as one of the key causes of the
decision of Americans to finally resort to armed
revolution, and as the kind of abuse which the Founders
wanted to prevent in the new nation.

The DC brief spends a significant amount of words
arguing that, even if the Second Amendment applies to
ordinary citizens, it does not apply in DC. The argument
is predicated on "necessary to the security of a free
State" being a reference to state governments, not a
free polity. Respondent's brief gives short shrift to
this argument, citing various cases that governance of
the District of Columbia is controlled by various parts
of the Constitution which only limit (or used to only
limit) Congress, and not state governments. Eugene
Volokh's Notre Dame L. Rev. article "Necessary
to the Security of a Free State," collects every
use of "a free state" during the Founding Era, and shows
that the phrase was a term of art which was used onlyto mean "a free polity" and never to mean "a free
American state government."

DC presents more social science data than does the
Heller brief, which confines itself to some quick
rebuttals. On both sides, the in-depth debate in social
science is in the amicus briefs. (More on those next
week, after the pro-Heller amici file on Monday.)

DC's gun lock law literally requires that all guns in
the home (rifles, shotguns, or pre-1977 handguns owned
pursuant to a grandfathering clause) be locked up or
disassembled at all times. The locking law makes an
exception for guns on business premises and for guns
being used in sporting activities. DC concedes that a
ban on use of long guns for self-defense in the home
would be unconstitutional, but argues that the
functional firearms ban must contain an implicit
self-defense exception. DC points to a case where a
court found that a duress exception must exist in an
another law.

Heller retorts by pointing to the 1977 D.C. Court of
Appeals (the District's equivalent of a state supreme
court) case of McIntosh v. Washington. In that
case, the Court of Appeals upheld the self-defense ban
as an intended feature, not a bug, of the District's new
gun law.

Both briefs are very well-written, and merit study by
any law student or lawyer looking for good examples of
persuasive brief-writing on sophisticated topics.

The
NRA amicus brief in DC v. Helleris now
on-line. Although the Court will be deluged with amici,
the NRA brief is likely to get a close read, for the
same reasons that Justices pay close attention to the
AFL-CIO brief in a labor case, or the ACLU brief in a
free speech case. Here's a summary:

Part I goes through the major textual and structural
arguments of the Second Amendment as an individual
right. Does not use a lot of Framing Era quotes (of
which there are a lot in Respondent's brief, and will be
more in other amicus briefs). Explains how the right of
the people to keep and bear arms makes possible the
existence of a well-regulated militia. This argument is
supported, in part, by a discussion of the NRA's own
history is promoting marksmanship and safety training,
including its leading role in certifying police firearms
instructors. My favorite part is President Truman's
letter thanking the NRA for its efforts during World War
II, which "have materially aided our war effort."

Part II argues for a strict scrutiny standard in review
of gun laws, based on Supreme Court precedent. It
distinguishes "fundamental" from the way that term is
used in deciding whether to incorporate a criminal
procedure provision from "rights fundamental to our
democracy." It notes that the Second Amendment declares
itself to be "necessaryto the security of free
state", and therefore must be fundamental to American
democracy itself.

The NRA brief engages the argument raised in
pro-DC amicus from Professors Winkler and
Chemerinsky. They had argued for a "reasonableness"
standard of review (with "reasonablness" meaning, in
effect, that almost any law short of total destruction
of the right is permissible). The W&C brief reasoned
that viewpoint discrimination is impossible in a Second
Amendment context, and that therefore strict scrutiny is
unnecessary. The NRA responds that viewpoint
discrimination certainly is possible, especially under a
weak standard of review, since gun laws could be used to
disarm political opponents. The point could have been
illustrated by abundant historical examples, but perhaps
space limitations precluded this.

Part III addresses crime and accident statistics, and
points out that only a minute fraction of the 200
million guns in America are misused. Modern state court
cases (e.g., Rhode Island's Mosby v. Devine) as
well as common law classics (Semayne's Case) are
deployed to argue for the right of armed self-defense in
the home.

The comments section of my previous post (on Heller's
brief) was impressively thoughtful, as it was clear that
commenters had read the Heller and DC briefs, and were
offering commentary to advance the discussion. (Rather
than getting into troll-fights over gun policy in
general.) Commenters, keep up the good work! Please read
the NRA brief before commenting, and of course also read
the Winkler-Chemerinsky brief if you want to comment on
the standard of review issue.

Just-posted: Marc Ayers (of the
Bradley Arant firm in Birmingham) and Don Kates have
written a Brandeis brief in the Supreme Court
handgun brief. The brief is filed on behalf of the
Claremont Institute and a group of scholars.

The single largest topic is a 1991 article in the New
England Journal of Medicine by Colin Loftin. The
NEJM article reported that the DC handgun ban had
reduced homicides and the suicide in the District.

The Claremont brief points out that the NEJM article
used raw numbers rather than rates, and used the wrong
start date for the law (which was delayed by an
injunction issued by the D.C. Superior Court). Moreover,
when one compares DC to the other 49 largest U.S.
cities, or to Virginia and Maryland, the D.C. homicide
rate grew worsein comparison to these other
jurisdictions. Notably, a meta-study by the National
Academies of Science agreed with the critiques of Gary
Kleck and Chester Britt that the NEJM article's data
were so fragile as to be of no persuasive value; even
small adjustments of the start/end date negated the
study's findings.

Given shorter treatment in the Kates/Ayers brief is
another study which used the circulation of Guns &
Ammomagazine as a proxy for gun ownership levels.
The study found that higher circulation of Guns &
Ammo was associated with higher homicide. This
finding is frequently restated in the briefs of DC and
its amici as a finding that more guns leads to more
murder. Kates/Ayers cite John Lott's article pointing
out that during the study period, Guns & Ammowas
giving away a huge number of free copies (to maintain
circulation numbers), and targeted the give-aways at
cities where it was believed that crime was increasing.
The circulation of other gun magazines (which were not
using G&A's circulation-boosting method) shows no
relation to homicide.

Kates/Ayers present extensive data showing that gun
density is not related to homicide. For example, since
the late 1940s, per capita gun ownership in the U.S. has
soared, while homicide rates have fluctuated with little
apparent relation to gun density. Likewise, comparative
data from Europe show no relation between gun density
levels and homicide rates.

DC has argued that its ban on possession of a functional
firearm in the home contains an implicit exception for
self-defense. Kates/Ayers explore what such an exception
might mean, and argue that there is no way for a Court,
or a DC resident, to discern the terms of the alleged
self-defense exception.

In the Supreme Court's DC handgun
ban case,
a brief from the Congress on Racial Equality argues
that there is a long history in America of gun controls
being enacted and applied with racially discriminatory
intent. A
brief for GeorgiaCarry.org makes similar arguments,
with more detail about Georgia. [I think it's wonderful
to see a 21st-century in which a black man won 2/3 of
the vote in the Georgia Democratic primary, and a
gun-rights organization from Georgia is calling for the
U.S. Supreme Court to pay attention to problems of
racial discrimination.]

In support of the DC handgun ban, a
brief from the NAACP LDF uses most of its words to
argue against overturning what its says is the large
body of anti-individual rights precedent. The brief also
points out the high rate of gun crime victimization by
blacks. Pages 29-31 of the NAACP LDF brief anticipate
the arguments presented CORE/GeorgiaCarry briefs, and
argue that the Fourteenth Amendment's equal protection
clause is sufficient to address any problem of racial
discrimination in gun laws. See also NAACP Br. at 19
n.20 (DC's ban is not racially discriminatory, and in
any case, Equal Protection and Due Process, are
sufficient to address the issue, without need for an
individual rights Second Amendment).

I don't think there's any reasonable dispute that much
of the gun control in American history is tainted by
racial discrimination. But, commenters, do you think
that the CORE and GeorgiaCarry briefs overcome the
NAACP's anticipatory counter-arguments? Please write
your comments after reading the briefs, rather than
making other arguments which could have been made, but
were not.

A brief in favor of Respondent Heller has just been
filed on behalf of 250 Members of the United States of
House of Representatives, 55 United States Senators,
and the President of the United States Senate, Richard
B. Cheney. In January,
a brief in support of the DC handgun and
self-defense ban was filed by 18 Members of the U.S.
House of Representatives. The latter brief suggests that
"Consideration of, or deference to, Congress’s
experience as an interpreter of the Constitution, in
appropriate circumstances, is entirely consistent with
the Court’s role." Indeed true.

The 250/55/1 brief explains that Congress has repeatedly
declared the Second Amendment to be an individual right,
in the 1866 Freedmen's Bureau Act, the 1941 Property
Requisition Act, the 1986 Firearms Owners' Protection
Act, and the 2006 Protection of Lawful Commerce in Arms
Act.

A brief filed on behalf of
Pink Pistols
and Gays and Lesbians for
Individual Liberty presents a LGBT perspective on
the Second Amendment. The main arguments are: 1. LGBT
people have a heightened need for handguns for
self-defense, because of the frequency of hate crimes,
the majority of which involve attacks in the home. 2.
The militia-only interpretation of the Second Amendment
would exclude LGBT people from the exercise of a
constitutional right, since courts are extremely
deferential to legislative/executive decisions on
military issues, including discrimination against LGBT
people in the military. Unlike with the other briefs
that I've blogged on, there is no counterpart brief in
support to the DC handgun ban to which I can link. No
LGBT organization participated in an amicus brief on
DC's side (although, of course, some of DC's other amici
are "gay-friendly," just as many of Heller's other amici
are).

A brief for the Cato
Institute and legal historian
Joyce Malcolm, in the DC handgun ban case,
explicates the English common law roots of the American
right to arms, and the development of that common law
right in America.

Many of the briefs on both sides of this case has brief
treatments of the English roots. A mistake in my view,
since the material is so repetitious. The English issue
is covered in some depth in a
pro-ban brief filed by historians
Jack Rakove,
Saul Cornell, and others.

In my view, the Cato/Malcolm brief demolishes the claim
that the 1689 English Bill of Rights, Blackstone's Fifth
Auxiliary Right, and other common law sources did not
recognize a right to own firearms in the home for
personal defense. The Cato/Malcolm brief is far broader
and deeper in its use of English sources, and requires
no verbal gymnastics to attempt to explain away the
plain languages of the key sources. Part II of the brief
leads the reader through the development of the
common-law right in America, from the colonial era
through the 19th century.

Jeffrey Toobin has written that Justice Souter reveres
the common law; if so, the Cato/Malcolm brief may be
especially persuasive to him.

A brief on behalf of 126 women state legislators,
and several academics, presents a women's rights
perspective on the DC ban on handguns and on home
self-defense with any firearm.

Part I points out that, compared to the past, women are
more likely to live alone. Young women are less likely
to move straight from their father's house to their
husband's house, but may instead live on their own. A
large number of elderly women live alone, because they
have outlived their mates, or for other reasons.
Accordingly, the paternalistic assumption that all women
are under the protection of a man has no validity today.

Part II notes the prevalence of violence against women,
particularly domestic violence. (This point is also made
at great length in a
pro-prohibition amicus filed on behalf of many state
domestic violence groups). The brief quotes Andrea
Dworkin discussed the battered woman: "She has a
constitutional right to a gun and a legal right to kill
if she believes she’s going to be killed. And a
batterer's repeated assaults should lawfully be taken as
intent to kill." Other feminist advocates of women's
empowerment for self-defense are cited and quoted too.

Section B of Part II summarizes the relevant social
science evidence, showing that armed self-defense by
women is effective. Although the domestic violence
groups cited studies showing that guns caused an
increased risk of homicide to a domestic violence
victim, the brief points out that the research shows an
increased risk if an abuserhas a gun. The data
show no statistically significant risk for gun ownershp
by victims who lives apart from the abuser and who has
her own gun.

The remainder of Part II points out that under cases
such as Castle Rock and Warren v. D.C.women are victimized because of law enforcement failure
to act against known threats (or even women who rely on
false 911 promises that help is on the way) have no
legal remedy.

Part III points out that because most women have less
upper body strength than men, a handgun is superior to a
long gun for self-defense. Also:

Advocates of women’s reproductive choice commonly
argue that pregnancy disproportionately affects
women due to their innate gender-based
characteristics. Thus, they argue, courts failing to
recognize the right to terminate a pregnancy
therefore discriminate against women and bar their
ability to participate as equal and full members of
civil society. While choices about pregnancy no
doubt impact a woman’s ability to determine the
course of part of her life, it is not clear why such
a right should be due greater protection than a
woman’s ability to defend her very existence.

The brief acknowledges that some women are hostile
to gun ownership. Historically, A large segment of
women were likewise averse, moderately supportive or
even downright indifferent to female suffrage and
women’s reproductive choice. However, the fact that
only some will choose to exercise their right to
self-defense should in no way prove a legal
impediment to those women for whom owning a firearm
is necessary to their ability to determine the
course of their lives and consequently their place
in society.

Read in conjunction with the brief of the domestic
violence groups, the two briefs present the court with
the contrasting perspectives, in regard to the gun
issue, of victim feminism and empowerment feminism.
All Related Posts (on one page) | Some Related
Posts:

In the tightly-written brief, Lund argues that every
permutation of the militia-only interpretation of the
Second Amendment leads to obviously absurd results. (Not
only as a practical matter, but as a matter of textual
interpretation.)

He urges that the language from United States v.
Miller, suggesting that "'private citizens might
have a right to possess weapons that are 'part of the
ordinary military equipment or [whose] use could
contribute to the common defense'" be treated as dicta.
When Millerwas decided, he observes, ordinary
soldiers and ordinary citizens both owned bolt-action
rifles; today, the Millertest would create a
constitutional right to machine guns.

Lund explains the preamble of the Second Amendment as an
"ablative absolute or nominative absolute. Such
constructions are grammatically independent of the rest
of the sentence, and do not qualify any word in the
operative clause to which they are appended. The usual
function of absolute constructions is to convey some
information about the circumstances surrounding the
statement in the main clause."

A telling example is provided by Article 3 of the
Northwest Ordinance:

Religion, morality, and knowledge, being necessary
to good government and the happiness of mankind,
schools and the means of education shall forever be
encouraged.

This provision – ratified by the same Congress that
drafted the Second Amendment – attests to a belief
in the beneficent effects of schools and education.
But it does not imply that "[r]eligion, morality,
and knowledge" are their only purpose.

[Side note: the inclusion of this quote in the briefing
can be traced to independent scholar David Young having
seen the quote above the entrance
Angell Hall, at the University of Michigan. It is a
perfect example of the importance of inscribing in stone
the noblest statements of public virtue, so that those
statements will be known to future generations, and will
be used to encourage liberty and responsible
self-government.]

As for the rest of the brief, it merits the reader's
careful study. No brief in this case is as lucid. As a
former Supreme Court clerk, Lund writes with the
precision that is typical of Solicitor General briefs.
It is not uncommon for briefs (on whatever issue) to
puff up themselves with bombast and extravagant
language. The Lund brief is a superb example of how to
write authoritatively but not pompously; for the latter
mode betrays an underlying insecurity about the
correctness of one's argument.

There are many excellent briefs on both sides of District of Columbia v. Heller. The readers of this
weblog include lawyers of varying degrees of experience,
and law students; some of them have an interest in
Second Amendment issues, while almost all of them aspire
to improve their brief-writing. If you want to read a
model Supreme Court brief, this is the brief to read.

In the Supreme Court handgun ban
case,
the brief for Jews for the Preservation of Firearms
Ownership presents an argument on a highly emotional
topic in a very sober and solid manner. Gun bans do not
always lead to genocide: Luxembourg bans all guns--and
provided the
sculpture of the destroyed revolver with a twisted
barrel that now adorns the plaza outside the United
Nations. The gun-hating government of the Duchy has not
attempted genocide against is disarmed subjects.
However, as the JPFO brief shows, governments which do
perpetrate genocide dowork hard to disarm the
victims beforehand.

Addressing this argument is something which the anti-gun
lobbies have rather conspicuously avoided over the
years. In 1995, I participated in a international gun
control symposium New York Law School; for my
contribution, I wrote a
favorable review
of JPFO's book Lethal Laws. The staff of New York Law
School Journal of International and Comparative Law
contacted gun control groups, and solicited an article
to counter mine. There were no takers.

While the pro-ban amicus briefs in DC v. Heller do
anticipate some of the arguments (e.g., gun control's
racist roots, Gary Kleck's figure of 2.5 million annual
defensive gun uses) which were expected to be raised by
Heller or his amici, none of the pro-ban briefs address
the genocide issue. The closest thing to a counter-brief
is
that of by the Educational Fund to Stop Gun
Violence, filed on behalf of a large number of
organizations, including several Jewish ones. The brief
argues that the Second Amendment could not possibly have
been written to protect the means of resistance to
tyranny. The EFSGV brief and the JPFO brief both provide
evidence from Founding Era writings to support their
respective arguments.

On behalf of several association
of private security guards and detectives, and the
Buckeye Firearms Foundation,
a brief in DC v. Heller supplies the facts of
the appalling mismanagement and institutional
incompetence of DC's Metropolitan Police Department.
Almost everyone who lives or works in the District of
Columbia is well aware that the District's government
performs very poorly compared to almost all other
big-city governments in the United States. Nevertheless,
the Buckeye brief is shocking.

The four core empirical subparts of the brief are
titled: "The MPD Has A Significant Problem Hiring And
Retaining Qualified Police Officers." "The MPD Has A
Significant History Of Mismanagement." "The District's
'911 System Is A Joke'." and "The MPD Has A Significant
History Of Corruption." Every one of these points is
proven beyond a reasonable doubt, relying almost
entirely on reports in Washington newspapers.

Moreover, although paying for security, through a
private security guard firm, is still legal in DC, the
MPD controls the licensing of security guards, and works
hard to suppress the private security business through
licensing abuse, and by prosecuting security guards on
specious charges.

The brief then points out that the DC government enjoys
civil immunity from persons who are injured because the
MPD's non-feasance, even when persons were injured
because they relied on false promises from DC 911
operators that help was on the way.

Thus, the decent, law-abiding citizens of the District
have no other recourse but to protect themselves (or to
hire security guards, if the , and, the brief argues,
the Court should recognize the right of the District's
citizens to do so themselves.

Obama's Victory Speech: Sounds like a President

Like France, but unlike the Ireland or the United Kingdom, the United States
combines the job of Head of State and Head of Government into a single person. A
citizen can disagree with governmental policy proposals of Barack Obama, just as
a citizen could disagree with the the policies of Ronald Reagan. But there is no
reasonable doubt that Reagan did an excellent job in his role as Head of State.
A patriotic American can appreciate the good work of a President as Head of
State, even while disliking much of the President's work as Head of Government.
Senator Obama's victory speech in South Carolina suggests that he too might
be an outstanding Head of State.

Carter-Bush tax rebates

Here's how to deal with a recession: A federal government which is already
spending more than its income should borrow even more money, so as to give lots
of people a tax rebate. This is the bipartisan plan of President Bush and
Congress. They are
taking a leaf
from the presidency of Jimmy Carter.

Even accounting for inflation, the Bush-Reid-Pelosi rebate is far more
profligate than the proposed Carter rebate of 1977. But the two rebates appear
to be based on the same demand-side principles.

President Carter also
proposed tax
rebates during the 1980 election campaign, as an alternative to Ronald Reagan's
calls for tax cuts.

Some of the critics of Carternomics were known as "supply-siders." Ronald Reagan
and his supporters argued that the best way to promote economic growth was not
for the federal government to give people money, but for the government to cut
marginal tax rates for the future, thereby spurring "supply-side" production and
investment. The Bush tax cuts of 2001, and much of the tax policy of the rest of
the Bush administration, were implementations of supply-side policy.

But the 2008 tax rebate brings us full circle back to 1980, as the final year of
the Bush administration increasingly resembles the final year of the Carter
administration-- including national malaise, getting tough on Israel but not on
Palestinian terrorists, support for the DC handgun ban, the Olympics hosted by a
communist regime with contempt for human rights, and a consensus that the
current adminstration is lacking in competence.

There are important differences, of course. Including the probability that if
the next President is a transformational one, that President will not an
ideological successor of the genial, far-right Ronald Reagan, but instead will
be the genial, far-left Barack Obama.

The EU Does Something Right on Technology Policy:

Sam Karnick's blog "The
American Culture" quotes my positive reaction to the EU's pro-privacy
stance on search engines collecting IP addresses. The EU position is
contrary to Google's practices. In some European countries, Google's search
engine dominance is even greater than in the United States.

Machine gun bleg

How many machine guns are currently in civilian (non-government hands) pursuant
to the registration and tax system of the 1934 National Firearms Act? Of course
these would be guns manufactured before May 19, 1986, thanks to 18 USC 922(o).
How many NFA civilian machine guns have been used in a crime? My guess is about
"100,000 guns in civilian hands" and "1 crime gun." However, comments with
precise citations would be much appreciated.

On Friday, 20 amicus briefs were filed in support of
the District of Columbia government, in the case
challenging the District's ban on handguns and on
functional firearms. The briefs are
here.

Most notably, the Solicitor General asked that the
decision of the Circuit Court of Appeals for the
District of Columbia be reversed and remanded. Details
are in Jonathan Adler's post, below.

If not for the massive volunteer work of persons
concerned about the Second Amendment, George W. Bush
would not have won the very close elections of 2000
and 2004. To state the obvious, the citizen activists
would never have spent all those hours volunteering
for a candidate whose position on the
constitutionality of a handgun ban was "Maybe."

The SG brief was one that might have been expected
from the administration of President John Kerry. As a
Senator, Kerry voted for a resolution affirming the
individual Second Amendment right, and also voted for
more repressive gun control at every opportunity.

The 2004 Bush victory over Kerry made a great
difference in the US posture at the 2006 UN gun
control conference, and in the signature of the
Protection of Lawful Commerce in Arms Act. The
election does not appear to have made a difference in
the management of the Bureau of Alcohol, Tobacco,
Firearms & Explosives, or of the Office of the
Solicitor General.

In the Comments below, there will be some people who
want to engage in a troll-driven debate over the gun
issue in general, and others who will want to
criticize or praise the Bush administration for the SG
brief. However, I encourage readers instead to read
one of more of the amicus briefs in toto, and to offer
thoughtful comments on the brief. Further, if you find
factual errors, misleading statements, or erroneous
citations in one of the amicus briefs, please point
them out, and, if possible, provide any additional
citation supporting your claim; please confine such
error correction to narrow points, rather than broad
argument over the thesis of a brief.

Update:
Interviewed by Glenn and Helen Reynolds this
weekend, Rudy Giuliani declared that he supported the
individual rights Second Amendment, "as interpreted
by the Parker decision." The comment would seem
to put him at odds with the position of the Bush
administration, whose brief claims that Parker was
wrong as a matter of law, and should be reversed and
remanded.

D.C. lawsuit
against gun manufacturers is dismissed:

A unanimous
3-judge decision of the District of Columbia Court of Appeals has
dismissed a municipal lawsuit brought against firearms
manufacturers,
District of Columbia v. Beretta et al. The court ruled that
the suit was barred by the Protection of Lawful Commerce in
Firearms Act, which was passed by Congress in 2005, and which by
its terms applies to all pending and future cases.

In the first part of the decision, the court rules that the
congressional act applies to lawsuits brought under D.C.'s Strict
Liability Act, which imposes absolute liability on manufacturers
for certain firearms injuries. The second part of the decision
rejects various arguments that it is unconstitutional for a
congressional statute to be applied to a lawsuit that has already
been filed.39 Comments

New research
on the Second Amendment

Now online:

Stephen P. Halbrook,
"St. George Tucker's Second Amendment: Deconstructing 'The
True Palladium of Liberty,'" 3:2 Tennessee Journal of Law and
Policy 183 (2007). St. George Tucker was the leading legal
commentator of the Early Republic. His edition of Blackstone,
which included copious annotations and appendices written by
Tucker, was the foundational legal treatise of its era, and the
first scholarly analysis of the new U.S. Constitution, and of how
American law was diverging from its British ancestor. Halbrook's
article shows that Tucker regarded the Second Amendment as an
individual right which included a right to own firearms for
self-defense and hunting. The article also points out deficiencies
in Saul Cornell's treatment of Tucker; Cornell has a tendency to
quote Tucker's analysis of militia issues as if the analysis were
about the Second Amendment, and to gloss over what Tucker actually
wrote about the Second Amendment.

"What
Does 'Bear Arms' Imply?" Working Paper by Clayton Cramer and
Joseph Olson. Gun prohibition advocates, including the D.C.
government in its
brief in D.C. v. Heller, contend that the words "bear arms" in
the Second Amendment have an exclusively military connotation, and
therefore "the right of the people to keep and bear arms" refers
exclusively to bearing arms as part of service in a formal state
militia. Cramer and Olson show that "bear arms" never had an
exclusively military connotation, either before ratification of
the Second Amendment, or in the following decades.

"Pistols,
Crime, and Public Safety in Early America" is another Working
Paper by Cramer and Olson. The authors show that the governments
of Founding Era were familiar with handguns, and never regulated
them differently from long guns. The typical pistol of the late
18th century could fire only a single shot; however, multi-shot
pistols had already been invented; many handgun owners provided
themselves with multi-shot capacity by carrying two or more
handguns, which was not difficult, since there were many very
compact handguns. Accordingly, the successful commercial
development of the multi-shot handgun (the Colt's revolver in the
1830s) was (unlike, for example, radio) an example of
technological progress that was well within the contemplation of
the Founders.91 Comments

Equino-Human
historical fantasy fiction:

My
Independence Institute colleague Rob S. Rice has written a new
book of historical fiction, titled Archival: Most Secret.
The book tells three loosely-related stories: about a dissolute
Scottish officer who ends up fighting in the Battle of New
Orleans, about the declining years of Randolph Churchill, and
about a British airman who is shot down over Crete in WWII. The
common thread of these stories is a secret British ministry which
has been involved with human-animal transformations. Each of the
stories involves an equine-related transformation. You can order
the book for $14.95 from Lulu, where you can also
read
the opening pages. I thought that the stories were
interesting, and that all of them picked up steam as the stories
progressed. That said, the format of the book (reproducing the
full text of various documents purported to come from secret
British archives) results in the plot moving forward relatively
slowly on a per-word basis--especially in the Churchill story. But
if you like horses and U.K. historical fiction, it's worth your
time to read a few pages, and decide if the book is your cup of
tea.14 Comments

The rest of Kopel's website

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